United States v. Celestine , 43 F. App'x 586 ( 2002 )


Menu:
  •                         UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.
       No. 97-4219
    BERNARD TROY CELESTINE, a/k/a
    Beaver, a/k/a Speed,
    Defendant-Appellant.
    
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                       No. 97-4220
    BARKLEY GARDNER, a/k/a Black Dog,
    Defendant-Appellant.
    
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.
    DUSHAWN LEVERT GARDNER, a/k/a             No. 97-4221
    Shawn, a/k/a Black, a/k/a Michael
    Archer,
    Defendant-Appellant.
    
    2                     UNITED STATES v. CELESTINE
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.
               No. 97-4238
    RANDOLF MOORE, a/k/a Booney,
    a/k/a Randy,
    Defendant-Appellant.
    
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.
    DUSHAWN LEVERT GARDNER, a/k/a                     No. 98-4222
    Shawn, a/k/a Black, a/k/a Michael
    Archer,
    Defendant-Appellant.
    
    Appeals from the United States District Court
    for the Eastern District of North Carolina, at Raleigh.
    Malcolm J. Howard, District Judge.
    (CR-95-41-H)
    Argued: June 3, 2002
    Decided: August 9, 2002
    Before WIDENER and TRAXLER, Circuit Judges, and
    Joseph R. GOODWIN, United States District Judge for the
    Southern District of West Virginia, sitting by designation.
    Affirmed by unpublished per curiam opinion.
    UNITED STATES v. CELESTINE                      3
    COUNSEL
    ARGUED: Thomas Norman Cochran, Assistant Federal Public
    Defender, Greensboro, North Carolina, for Appellant Barkley Gard-
    ner; Wayne James Payne, Shallotte, North Carolina, for Appellant
    Dushawn Gardner; Joseph Michael McGuinness, Elizabethtown,
    North Carolina, for Appellant Moore; Joseph L. Bell, Jr., Rocky
    Mount, North Carolina, for Appellant Celestine. John Eric Evenson,
    II, Assistant United States Attorney, Raleigh, North Carolina, for
    Appellee. ON BRIEF: John Stuart Bruce, United States Attorney,
    Anne M. Hayes, Assistant United States Attorney, J. Frank Bradsher,
    Assistant United States Attorney, Raleigh, North Carolina, for Appel-
    lee.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Following a month-long trial, appellants were convicted of violat-
    ing the federal Racketeer Influenced and Corrupt Organizations stat-
    ute, 
    18 U.S.C. § 1962
     (1995) (RICO), by promoting an interstate drug
    ring, of conspiracy to commit that offense in violation of 
    18 U.S.C. § 1962
    (d), and of narcotics conspiracy in violation of 
    21 U.S.C. § 846
    (1995). Individual appellants also were convicted of murder in aid of
    racketeering and aiding and abetting in violation of 
    18 U.S.C. §§ 2
     &
    1959(a)(1) (1995), conspiracy to murder in aid of racketeering in vio-
    lation of 
    18 U.S.C. § 1959
    (a)(5), carjacking resulting in death in vio-
    lation of 
    18 U.S.C. §§ 2
     & 2119(3) (1995), using and carrying a
    firearm to further a crime of violence causing death in violation of 
    18 U.S.C. §§ 2
     & 924(i) (1994), conspiracy to kidnap in violation of 
    18 U.S.C. § 1201
    (c) (1995), and kidnaping resulting in death in violation
    of 
    18 U.S.C. §§ 2
     & 1201(a)(1). On appeal, they contend that various
    trial errors, including evidentiary rulings, improper jury instructions,
    4                    UNITED STATES v. CELESTINE
    and improper prosecutorial comments during closing arguments, man-
    date a reversal of their convictions. The court finds no prejudicial
    error in the jury instructions, admission of hearsay statements, or
    denial of appellant Randolf Moore’s request to proceed pro se. There
    is substantial evidence to support the appellants’ convictions, and
    their sentences do not violate Apprendi. Accordingly, we affirm the
    convictions.
    I.
    In 1993, a large drug-trafficking enterprise began doing business in
    North Carolina and New York and later extended its activities into
    Maryland. The group began in Brooklyn, where many of the members
    grew up together and sold drugs on Brooklyn’s Argyle Street.
    Various group members made periodic trips back and forth from
    New York where they bought drugs, to North Carolina where they
    sold drugs. Friends and girlfriends assisted by allowing the group’s
    car titles, insurance, and telephone accounts to be put in their names,
    and by renting apartments which were used for selling drugs and for
    storing guns, drugs, and money.
    In 1994, an independent third party named Bam Bam Ellis shot
    Tremayne Hubbard, an associate of the drug enterprise. Appellant
    Dushawn Gardner and enterprise member Lamont Fleming attempted
    to get revenge on Ellis, but they shot the wrong person. Gardner and
    Fleming attempted several more times to kill Ellis but were never suc-
    cessful.
    In 1995, enterprise members Jack Washington and Brian Linton
    killed a friend of the group’s from Brooklyn, Joseph Brooks. Wash-
    ington told other members of the group that an independent drug
    dealer, Lateisha Beaman, had hired him to kill Brooks. Other asso-
    ciates then began plotting to kill Beaman in retaliation, and arranged
    a phony drug deal to trick her into meeting them. After meeting her,
    associate members returned with her to an apartment, where appel-
    lants Dushawn and Barkley Gardner, Randolf Moore, and additional
    associates were waiting. They car-jacked her, took her to a rural,
    wooded area, and shot her. They buried the weapons. Group member
    UNITED STATES v. CELESTINE                       5
    Lamont Fleming eventually killed Washington in retaliation, and
    again the group buried the weapon.
    Roneka Jackson was a sometimes girlfriend of appellant Dushawn
    Gardner and a mother of one of his children. She occasionally sold
    drugs for the group and was involved in the details of its operations.
    In August 1995, Dushawn and Barkley Gardner asked her to help
    them get Dushawn’s van to New York. They were avoiding authori-
    ties in North Carolina who were investigating the group’s criminal
    activities, and they wanted to return to New York undetected. Appel-
    lant Bernard Celestine then suggested that while they were staying
    away from North Carolina, they could sell drugs in Baltimore for a
    while to make money. Celestine, Jackson, and Dushawn Gardner
    spent several days there before returning to New York for more drugs.
    They made several trips between Baltimore and New York.
    During that time, Jackson phoned her mother and said that she was
    in New York with Dushawn Gardner. Jackson later reported to her
    mother and to a detective with whom she had worked in the past that
    she had gone to New York with the Gardners and Celestine because
    she was promised a car, new clothes, and money for her own apart-
    ment in exchange for her assistance. She said she wanted to leave but
    that the group was watching her and following her to the bathroom
    with a gun at her back, and that she did not have enough money to
    get home to North Carolina. When the group was in Baltimore again,
    she got away and a friend paid for her to stay in a motel for two
    nights. Dushawn Gardner and Celestine tracked her down, removed
    her from the motel room at gunpoint, and returned to New York
    where they decided to kill her. Because they could not find a gun,
    they broke her neck, doused her with gasoline, and lit her on fire. All
    the while, she pleaded for mercy and promised not to tell.
    Key enterprise members were arrested shortly thereafter. Some
    members of the conspiracy plead guilty and testified against the oth-
    ers. The remaining defendants went to trial in 1996, and were con-
    victed on most counts charged.
    II. Jury Instructions
    First, appellants allege several errors in the jury instructions. They
    argue that the district court improperly instructed the jury regarding
    6                          UNITED STATES v. CELESTINE
    the elements of a RICO offense and regarding the law on the other
    conspiracy counts. We review the district court’s jury instructions in
    their entirety, and focus on whether the district court instructed the
    jury regarding the elements of the offense and the defendant’s
    defenses. See United States v. Wilson, 
    198 F.3d 467
    , 469 (4th Cir.
    1999). Where appellants properly object, the specific formulation of
    instructions is reviewed for abuse of discretion. United States v.
    Helem, 
    186 F.3d 449
    , 454 (4th Cir. 1999). Where an objection is not
    preserved, review is for plain error. United States v. Nicolaou, 
    180 F.3d 565
    , 569 (4th Cir. 1999).
    A.
    RICO requires the Government to prove "a pattern of racketeering
    activity." 
    18 U.S.C. § 1962
    (c). To do so, it must establish that at least
    two predicate acts are related, and that the acts amount to, or other-
    wise constitute, a threat of continuing racketeering activity. H.J. Inc.
    v. Northwestern Bell Tel. Co., 
    492 U.S. 229
    , 240-42 (1989). The con-
    tinuity in combination with the relationship produces the pattern
    required under the statute. 
    Id. at 239
    .
    Appellants argue that the district court failed to instruct the jury
    that the government was required to prove beyond a reasonable doubt
    that the racketeering acts charged in the indictment were both hori-
    zontally related and vertically related. Their objection to this instruc-
    tion was properly preserved, and so will be reviewed for abuse of
    discretion. See J.A. 2441. The court finds that the instructions ade-
    quately convey the meaning of both terms.1 The "third" point covers
    1
    The district court’s instruction on the RICO count included, in rele-
    vant part:
    The term "pattern of racketeering activity" requires at least two
    acts of "racketeering activity," sometimes called predicate
    offenses, which must have been committed within 10 years of
    each other, within a space of 10 years from the start to the finish,
    one of which must have occurred after October 1, 1970 . . . . So
    in order to establish that the Defendants named in Count One of
    the indictment, or any one of them you may be considering,
    committed the offense charged in Count One, there are five spe-
    cific acts which must be proved beyond a reasonable doubt:
    UNITED STATES v. CELESTINE                          7
    horizontal relatedness by requiring the jury to find that the acts are
    related to each other. The "fourth" point requires the acts to be related
    to the criminal enterprise and thus covers the vertical element. This
    instruction satisfies the requirements of H.J. Inc.
    The Government concedes that the instruction failed to specifically
    refer to the continuity requirement that a defendant’s racketeering acts
    amount to, or threaten, the likelihood of continued criminal activity.
    See H.J. Inc., 
    492 U.S. at 240-42
    . It contends, however, that continu-
    ity is not, strictly speaking, an element of a RICO offense, but is
    instead characteristic of the evidence used to prove the broader pat-
    tern element. The Government cites United States v. Boylan, in which
    the First Circuit held that where an instruction "adequately invinced
    [sic] the concept that continuity requires ‘a series of related predicate
    extending over a substantial period of time,’ reflective of a ‘regular
    way’ of conducting the enterprise’s affairs," it was not plain error to
    fail to mention "continuity" as an element of proving racketeering
    activity. United States v. Boylan, 
    898 F.2d 230
    , 250-51 (1st Cir.
    1990). The Government overstates the holding of Boylan. While Boy-
    lan states in dicta that "continuity is not an element of a RICO
    offense, stricto senso," the court still required the instructions to
    reflect the concept of continuity. 
    898 F.2d at 250-51
    .
    . . . Third: That the two predicate offenses, the two racketeering
    acts allegedly committed by the Defendant were connected with
    each other by some common scheme, plan, or motive, so as to
    be a pattern of criminal activity, and not merely a series of sepa-
    rate, isolated, or disconnected acts.
    Fourth: That through the commission of the two or more con-
    nected offenses, the racketeering acts, the Defendant conducted
    or participated in the conduct of the enterprise’s affairs. . . .
    . . . . You are further instructed that you must unanimously agree,
    that is, all 12 of you in your deliberations must agree concerning
    each Defendant under consideration, as to which of the two pred-
    icate offenses, the acts of racketeering he committed. . . . You
    must all agree upon the same two predicate offenses, in order to
    find a particular Defendant guilty of Count One.
    J.A. 2023-26.
    8                     UNITED STATES v. CELESTINE
    To satisfy the requirements of H.J. Inc., the jury instruction at least
    must incorporate the concept of continuity. See H.J. Inc., 
    492 U.S. at 240-42
    . The court finds that the instant instruction does so. The Elev-
    enth Circuit approved an almost identical instruction which failed to
    specifically mention continuity, but stated that there must be a pattern
    of activity and not just a series of separate isolated or disconnected
    acts. See United States v. Kotvas, 
    941 F.2d 1141
    , 1144-45 (11th Cir.
    1991). Here, the jury was instructed that the acts had to be "connected
    with each other by some common scheme, plan or motive so as to be
    a pattern of activity, and not merely a series of separate, isolated, or
    disconnected acts." The term "pattern" requires a showing of the
    threat of continuing activity. See Kotvas, 
    941 F.2d at 1144-45
    . Thus
    by requiring the jury to find a pattern of activity, and not just isolated
    acts, the district court instructed the jury on continuity. See 
    id.
     More-
    over, the defendants’ proposed jury instructions do not contain any
    greater elaboration on the continuity requirement than the instruction
    given by the district court.2 The court therefore finds that the district
    court did not abuse its discretion in instructing the jury on this count.
    B.
    Racketeering Acts Two A, Three A, and Four A in the RICO count
    alleged conspiracy to commit murder and murder in violation of 
    N.C. Gen. Stat. § 14-17
     (2002). Appellants argue that the district court
    failed to instruct the jury on the North Carolina definitions of conspir-
    acy and murder.
    On the instruction for the first racketeering act of the narcotics con-
    spiracy, the district court stated, "I will instruct you on the definition
    and elements of conspiracy later in these instructions." J.A. 2028. It
    then did so four times: on Count Two (RICO conspiracy), Count
    Three (narcotics conspiracy); Counts Four and Eight (murder conspir-
    acy), and Count Ten (kidnaping conspiracy). J.A. 2037-38; 2046-47;
    2050-51; & 2063-64. The district court also gave a long instruction
    on the definition of murder under North Carolina law. J.A. 2052-54.
    2
    The proposed instruction stated only that the jury must find beyond
    a reasonable doubt that "each defendant participated in the affairs of the
    Enterprise through a pattern of Racketeering activity as described in the
    Indictment through the knowing and willful or deliberate commission of
    at least two Racketeering acts within ten years of each other." J.A. 1909.
    UNITED STATES v. CELESTINE                        9
    These instructions do not omit any element required by North Caro-
    lina law. The court finds that the district court did not abuse its discre-
    tion in formulating these instructions.
    C.
    For first degree kidnaping, North Carolina law requires a jury to
    find beyond a reasonable doubt that a felony was committed prior to
    the kidnaping. Defendants requested an instruction that read, in rele-
    vant part:
    You may not find that [the defendants] committed racketeer-
    ing act 5A, unless you first find that the Government has
    proved beyond a reasonable doubt each of the following
    essential elements: 1. On or about between August 16, 1995
    and September 23, 1995, two or more persons reached an
    agreement to kidnap Roneka Jackson for the purpose of
    facilitating the flight of [defendants] following the commis-
    sion of a felony, that being narcotics trafficking.
    J.A. 1944. The district court told the jury that the Government had to
    prove, "that the Defendant removed [a person] for the purpose of
    facilitating his or another person’s flight after committing a narcotics
    trafficking crime." J.A. 2032. Appellants now argue that a "narcotics
    trafficking crime" does not constitute a "specifically defined felony"
    as required by North Carolina law. According to them, narcotics traf-
    ficking is not a crime that exists under North Carolina law.
    The invited error doctrine prevents a criminal defendant from com-
    plaining of error which he himself has invited. United States v. Her-
    rera, 
    23 F.3d 74
    , 75 (4th Cir. 1994). Because the district court used
    the language suggested by the defendants, they cannot now claim
    error based on that very phrasing. 
    Id.
     Moreover, many North Carolina
    statutes refer specifically to "narcotics trafficking crimes." See, e.g.,
    
    N.C. Gen. Stat. §§ 148-4.1
    (a) (2002); 15A-533(d)(2) (2002); 15A-
    290(a)(1)a (2002). For those reasons, the court finds that the district
    court did not abuse its discretion in formulating this instruction.
    Appellants also argue that the instructions on multiple states’ kid-
    naping laws allowed the jury to convict them of a crime that does not
    10                      UNITED STATES v. CELESTINE
    exist, because they could evaluate the conduct in one state under the
    elements for proof required by the law of a different state. This argu-
    ment is without merit, however, because the district court clearly and
    thoroughly discussed each state’s kidnaping law and told the jury,
    "You must unanimously agree as to which state, and the elements
    under that state." J.A. 2032.
    D.
    Counts Four, Five, and Eight charged murder and murder conspir-
    acy in violation of 
    18 U.S.C. § 1959
     (1995). To prove a violation of
    this statute, the Government had to prove 1) that the organization was
    a RICO enterprise; 2) that the enterprise was engaged in racketeering
    activity as defined by RICO; 3) that the defendant has a position in
    the enterprise; 4) that the defendant had committed the alleged crime
    of violence; and 5) that his general purpose in so doing was to main-
    tain or increase his position in the enterprise. United States v. Fiel, 
    35 F.3d 997
    , 1003 (4th Cir. 1994).
    Appellants argue that the judge failed to instruct as to the third and
    fifth Fiel elements — that the defendant had a position in the enter-
    prise and that the purpose in committing the crime of violence was
    to maintain or increase his position in the enterprise.3 Because defen-
    3
    The district court instructed the jury:
    The law is the same on both Count Four and Eight; so I will only
    explain it one time. Count Four, now, in the indictment, charges
    [the Gardners and Moore] with conspiring to murder Lateisha
    Beaman in order to maintain and increase their position in a
    "criminal enterprise,["], as that term was explained in Count
    One. Count Eight charges Dushawn Gardner and Randolf Moore
    only with violating federal law by conspiring to murder Jack
    Washington in order to maintain and increase their position in a
    criminal enterprise.
    Title 18, United States Code, Section 1959, makes it a separate
    federal crime for anyone to attempt or to conspire to commit
    murder in violation of state or federal law, in an effort to gain
    entrance to or maintain or increase their [sic] position in an
    enterprise engaged in racketeering activity. To determine
    UNITED STATES v. CELESTINE                        11
    dants did not object to the instructions on these counts, they are
    reviewable only for plain error. United States v. Olano, 
    507 U.S. 725
    ,
    731 (1993).
    The jury found that the defendants committed RICO offenses. They
    could not have so decided without finding that the defendants were
    involved in the enterprise. For those reasons, the court finds that there
    was no plain error in this instruction.
    III. Sufficiency of Evidence
    The appellants next argue that there is insufficient evidence to sup-
    port their convictions on Counts One, Two, and Three. Appellant
    whether an enterprise existed which engaged in racketeering
    activity, you are to apply the same meaning to those terms, as I
    explained in more detail in Count One.
    J.A. 2048-49. The court then instructed the jury on the specific offense
    charged in Counts Four and Eight.
    On Count Five, the district court told the jury:
    Count Five charges [both the Gardners and Moore], together
    with others, with violating [
    18 U.S.C. § 1959
    ], a federal law, by
    murdering Lateisha Beaman and/or aiding and abetting each
    other in so doing, in order to gain entrance to and maintain and
    increase their position in a criminal enterprise as that term was
    explained to you in Count One. . . . In order to prove that the
    Defendant violated this section, you must find the Government
    has proved beyond a reasonable doubt, the following three
    things, as to Count Five: First, that each of the defendants
    charged in this count intentionally and with malice killed Late-
    isha Beaman. . . . Second, that the Defendant then under consid-
    eration, that Defendant’s acts were a proximate cause of the
    victim’s death. And I tell you that a proximate cause is a real
    cause, a cause without which the victim’s death would not have
    occurred. That’s the meaning of proximate cause. Third and
    final, that the defendant intended — the defendant then under
    consideration intended to kill Lateisha Beaman, the victim.
    J.A. 2052-54. The court repeated the statutory language and again stated,
    "To determine whether an enterprise existed which engaged in racketeer-
    ing activity, you are to apply the same meaning to those terms as I have
    previously defined them." 
    Id.
    12                     UNITED STATES v. CELESTINE
    Barkley Gardner also challenges the evidence on his convictions on
    Counts Four, Five, Six, and Seven. In determining whether the evi-
    dence was sufficient to prove the offense charged, we must consider
    — viewing the evidence in the light most favorable to the Govern-
    ment — whether any rational trier of fact could find guilt beyond a
    reasonable doubt. United States v. Rahman, 
    83 F.3d 89
    , 93 (4th Cir.
    1996).
    A.
    Appellants claim that the Government failed to prove 1) that racke-
    teering acts two, three, and four were related horizontally to one
    another and vertically to the enterprise, and 2) that it failed to link any
    defendant to the attempt to murder Ellis or to any of the other murders
    for the purposes of furthering the goals of the enterprise. According
    to them, the plan to kill Ellis was a manhood test for Tremayne Hub-
    bard or revenge for the attempt Ellis had made on Hubbard’s life;
    Beaman’s murder was revenge for the killing of Brooks. Thus neither
    murder, they claim, was related to the criminal enterprise.
    The Government’s theory at trial was that the violence related to
    and served the purposes of the enterprise. The Government presented
    evidence that 1) various members of the enterprise had attempted to
    kill Ellis; 2) Hubbard sold drugs in Durham, North Carolina, as did
    Ellis; 3) Ellis shot and tried to kill Hubbard; 4) the group’s attempts
    to kill Ellis in retaliation perpetuated its reputation in the community
    for violence and strengthened the bonds of loyalty and duty among
    members of the enterprise. It also presented evidence that 1) Beaman
    was an independent drug dealer who hired enterprise members Jack
    Washington and Brian Linton to murder Brooks, a Brooklyn associate
    of enterprise members; 2) Washington and Linton murdered Brooks,
    setting in motion the chain of events that led to the murders of Bea-
    man and Washington and the attempted murder of Linton. One wit-
    ness, for example, testified that Washington was killed "for the
    cause." J.A. 875. This evidence tends to show the domino effect of
    each act of violence. We find that there is enough substantial evidence
    on this count to sustain appellants’ convictions.
    Next, appellants claim that the convictions must be reversed
    because it is impossible to tell if the jury based its conviction on at
    UNITED STATES v. CELESTINE                       13
    least two permissible racketeering acts. They cite Yates v. United
    States, 
    354 U.S. 298
     (1957), for this proposition. In Yates, the general
    verdict was supportable on one ground, but invalid on an alternate
    ground because of constitutional limitations. 
    Id. at 310
    . Because it
    was impossible to tell on which ground the verdict was based, the
    Court held that it must be set aside. 
    Id.
     As Griffin v. United States
    made clear, however, Yates stands only for the proposition that where
    a provision of the Constitution forbids conviction on a particular
    ground, the constitutional guarantee is violated by a general verdict
    that may have rested on the same ground. 
    502 U.S. 46
    , 53 (1992).
    When a jury returns a guilty verdict on an indictment charging several
    acts in the conjunctive, the verdict stands if the evidence is sufficient
    with respect to any one of the acts charged. 
    Id. at 56-57
    . Here, the dis-
    trict court instructed the jury that it had to "unanimously agree . . . as
    to which of the two predicate offenses, the acts of racketeering he
    committed . . . You must all agree on the same two predicate
    offenses." J.A. 2026. The instant indictment charged eight racketeer-
    ing acts. The jury thus could have returned guilty verdicts based on
    any two acts, as long as they agreed on which two. Their verdict is
    not defective because appellants can not determine on which acts they
    were being convicted. See Griffin, 502 U.S. at 53.
    Appellants also argue that the Government did not prove the exis-
    tence of a single conspiracy, rather than proving only multiple smaller
    conspiracies. A single conspiracy exists when there is one overall
    agreement. United States v. Leavis, 
    853 F.2d 215
    , 218 (4th Cir. 1988).
    Whether there are multiple conspiracies or a single conspiracy
    depends on the overlap of key actors, methods, and goals. 
    Id.
     A
    defendant can be involved in a conspiracy without being involved in
    every phase of that conspiracy. 
    Id.
     Indeed, a defendant can be con-
    victed of conspiracy if the evidence shows his participation in only
    one level. United States v. Johnson, 
    54 F.3d 1150
    , 1154 (4th Cir.
    1995).
    The court finds that there is substantial evidence that a single con-
    spiracy existed. The common goal was selling drugs for profit. Com-
    mon actors were the Flemings and the Gardners, who all helped
    establish the North Carolina operations and then led the retreat back
    to New York, and the expansion into Maryland. Common methods
    were traveling by car from North Carolina to New York to buy drugs,
    14                    UNITED STATES v. CELESTINE
    using proxies to rent apartments and hotel rooms from which to dis-
    tribute drugs, using alias names when confronted by police, and using
    violence to intimidate and create loyalty.
    B.
    Appellant Barkley Gardner argues that there is insufficient evi-
    dence relating him to the death of Beaman. The Government, how-
    ever, presented evidence that Barkley helped hatch the plan to kill
    Beaman, and then later looked for Beaman’s car keys so he and the
    other associates could transport her elsewhere. J.A. 488-90; 630.
    When she tried to run away, Barkley Gardner helped force her back
    in the car. J.A. 629. Although it appears he did not participate in
    every stage of the venture, evidence of his involvement is more than
    enough to sustain his conviction.
    IV. Admission of Hearsay Statements
    Appellants argue that the district court improperly admitted hearsay
    statements that Jackson made to various people on the phone during
    her kidnaping and before her murder. The district court admitted the
    statements pursuant to a "host of bases," specifically including Fed.
    R. Evid. 803(3) (then existing mental, physical or emotional condi-
    tion) and 804(b)(5)4 (statement more probative than other evidence
    procurable through reasonable efforts). J.A. 1287. We review eviden-
    tiary decisions by the district court for an abuse of discretion. United
    States v. Robinson, 
    275 F.3d 371
    , 382 (4th Cir. 2002).
    The Government points out that these hearsay statements are now
    admissible under the new Rule 804(b)(6) (forfeiture by wrongdoing),
    which codifies then-existing common law. See Fed. R. Evid.
    804(b)(6) advisory committee’s note. The common-law doctrine of
    forfeiture by misconduct held that where a party’s deliberate wrong-
    doing or acquiescence thereto procured the unavailability of a hearsay
    declarant as a witness, he forfeits the right to object on hearsay
    grounds to the admission of the declarant’s prior statement. At the
    time of the trial, every circuit that had addressed the issue recognized
    4
    This provision is now combined with former Rule 803(24) in Rule
    807.
    UNITED STATES v. CELESTINE                      15
    the doctrine. See, e.g., United States v. Houlihan, 
    92 F.3d 1271
    , 1280
    (1st Cir. 1996); United States v. Aguiar, 
    975 F.2d 45
    , 47 (2d Cir.
    1992); United States v. Thevis, 
    665 F.2d 616
    , 631 (5th Cir. 1982);
    Steele v. Taylor, 
    684 F.2d 1193
    , 1202 (6th Cir. 1982); United States
    v. Balano, 
    618 F.2d 624
    , 629 (10th Cir. 1980); United States v. Carl-
    son, 
    547 F.2d 1346
    , 1358-59 (8th Cir. 1976). The circuits adopted
    varying tests for determining whether a forfeiture had occurred. Some
    applied a clear and convincing evidence standard. See, e.g., Thevis,
    
    684 F.2d at 630
    . Others used a preponderance of the evidence analy-
    sis. See, e.g., Houlihan, 
    92 F.3d at 1280
    .
    The evidence surrounding Jackson’s death indicates that she was
    killed to prevent her from talking. As her killers tried to break her
    neck, she screamed, "I’m not going to tell, I’m not going to tell." J.A.
    1706. Under either a clear and convincing standard or a preponder-
    ance standard, we cannot say the district court abused its discretion
    in admitting the statements under the waiver-by-wrongdoing doctrine.
    The court finds that the statements also were admissible under Rule
    804(b)(5) because circumstantial guarantees of trustworthiness were
    present. See United States v. Clarke, 
    2 F.3d 81
    , 84 (4th Cir. 1993).
    Jackson made consistent statements regarding her kidnaping to her
    mother and to a police detective, who took contemporaneous notes
    during each conversation. Many of the calls were substantiated by
    telephone records and by the testimony of other witnesses. There
    appears to be no motive for Jackson to have lied, nor have appellants
    identified one. The district court did not abuse its discretion in admit-
    ting these statements.
    V. Prosecutorial Comments During Closing Arguments
    Appellants argue that in closing arguments, the prosecutor made
    improper and prejudicial comments which deprived them of a fair
    trial. Remarks by a prosecutor can constitute grounds for reversal
    where 1) the remarks were improper, and 2) the remarks so prejudi-
    cially affected the defendant’s substantial rights so as to deprive him
    of a fair trial. United States v. Curry, 
    993 F.2d 43
    , 45 (4th Cir. 1993).
    Put another way, improper argument by the prosecutor is not grounds
    for reversal unless there is substantial prejudice as well as error.
    United States v. Whitehead, 
    618 F.2d 523
    , 528 (4th Cir. 1980). To
    16                     UNITED STATES v. CELESTINE
    determine whether the remarks were prejudicial, this court looks to 1)
    the degree to which the remarks tended to mislead the jury or preju-
    dice the accused; 2) whether the remarks were isolated or extensive;
    3) the strength of the evidence supporting guilt in the absence of the
    remarks; and 4) whether the remarks were deliberately placed in front
    of the jury to divert attention to extraneous matters. Curry, 993 F.3d
    at 45-46. It also considers 5) whether the prosecutor’s remarks were
    invited by improper conduct of defense counsel, and 6) whether cura-
    tive instructions were given to the jury. United States v. Wilson, 
    135 F.3d 291
    , 299 (4th Cir. 1998). These factors are examined in the con-
    text of the entire trial, and no one factor is dispositive. 
    Id.
    The court finds that none of the prosecutor’s remarks were
    improper. Appellant Randolf Moore first complains about comments
    on his credibility:
    You need to watch and listen to him. Why? Because he’s
    got an interest in this lawsuit. And I contend to you because
    he’s got an interest, and he so much as told you without
    realizing it, he’ll come up here and tell you any type of
    cooked-up, trumped-up, cock-and-bull story hoping you’re
    naive enough to believe it, so he can walk out those doors
    and avoid the consequences of his criminal conduct. You
    watched him up there. . . . Well, ladies and gentlemen of the
    jury, I’ll tell you one of biggest lies there is and that’s a half-
    truth. And do you know what Randy Moore has shown
    throughout this racketeering enterprise? He is a master at
    telling half the truth.
    J.A. 2305-07. A prosecutor may not directly express his opinion as to
    the veracity of a witness, but he may stress the inconsistencies and
    improbabilities in a witness’s testimony. United States v. Moore, 
    710 F.2d 157
    , 159 (4th Cir. 1983). Moore had admitted numerous times
    during his testimony that he had lied. The prosecutor’s remarks serve
    to highlight these admissions and to cast doubt on his credibility. The
    remarks were prefaced by "I contend to you," which indicates routine
    argument, and not the expression of the prosecutor’s personal opinion
    of Moore as a man or as a witness. The court finds nothing improper
    about these remarks, and thus need not reach the next step of the
    Curry inquiry.
    UNITED STATES v. CELESTINE                       17
    Appellants next complain that the prosecutor improperly vouched
    for government witnesses:
    I argue to you, we corroborated virtually every major piece
    of evidence in this case. Why? So you wouldn’t have to
    worry about that. So you wouldn’t have to lose any sleep
    over this. Even Randy Moore told you — and he thought he
    was fooling you, I contend to you, the witnesses told you the
    truth.
    J.A. at 2308.
    It is impermissible for a prosecutor to vouch for or bolster the testi-
    mony of government witnesses during arguments to the jury. United
    States v. Sanchez, 
    118 F.3d 192
    , 198 (4th Cir. 1997). The court finds,
    however, that these comments do not constitute vouching. Vouching
    occurs when a prosecutor indicates a personal belief in the credibility
    or honesty of the witness. 
    Id.
     Here, the prosecutor prefaced his com-
    ments with the phrases, "I argue to you" and "I contend to you." His
    comments were argument, and not indication of a personal belief. As
    such, they were proper.
    Finally, appellants argue that the prosecutor made two improper
    attacks on defense counsel during rebuttal. First, he said, "I would
    argue to you that based on what [defense counsel] argued to you here
    today, that perhaps some of them weren’t sitting in the same court-
    room that you and I were." J.A. 2298. He also stated
    And they talk about the Government parading witnesses in
    here and trying to get you in a conviction mood. Well, you
    know what? The last I looked, there was a Judge sitting in
    this courtroom. Do you think this Judge has lost control to
    the point we’re getting you in some kind of conviction
    mood?
    J.A. 2307. Counsel may not make unfounded and inflammatory
    attacks on the opposing advocate. United States v. Young, 
    470 U.S. 1
    , 8 (1985). The instant statements, however, are not the sort of bla-
    tant personal attack contemplated by the Court in Young.5 Instead,
    5
    Young dealt with the prosecutor’s remark, "I don’t know whether you
    call it honor and integrity, I don’t call it that, [defense counsel] does,"
    18                    UNITED STATES v. CELESTINE
    they are rhetorical devices of the kind employed routinely in court-
    rooms across the country. The court finds nothing improper about
    those remarks.
    VI. Remaining Issues
    The remaining claims may be briefly addressed. Appellant Moore
    complains of the district court’s refusal to honor his request to repre-
    sent himself. The assertion of the Sixth Amendment right to represent
    onself must be 1) clear and unequivocal; and 2) knowing, intelligent,
    and voluntary. United States v. Frazier-El, 
    204 F.3d 553
    , 558 (4th
    Cir. 2000). The right is not absolute, and can be waived by failure to
    timely assert it, or by subsequent conduct giving the appearance of
    uncertainty. United States v. Singleton, 
    107 F.3d 1091
    , 1096 (4th Cir.
    1997). Thus, if a defendant proceeds to trial and asserts his right to
    self-representation only after the trial has begun, he may have waived
    that right, and the exercise of the right may be denied, limited, or con-
    ditioned. 
    Id.
     The record here does not reflect a timely request to pro-
    ceed pro se, and Moore agreed during trial that his attorney would ask
    questions. For those reasons, we find that the district court did not
    abuse its discretion in denying Moore’s request to proceed pro se.
    Finally, appellants argue that their life sentences on Count Three
    violate Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), because drug
    quantity was neither specified in the indictment nor submitted to the
    jury. Because they failed to raise this issue before the district court,
    we review for plain error. See Olano, 
    507 U.S. at 731-32
    . Although
    appellants’ convictions on this count subjected them to a maximum
    statutory penalty of 20 years, each received a life sentence. This was
    plain error. See United States v. Promise, 
    255 F.3d 150
    , 156-57 (4th
    Cir. 2001). We may notice this error only if appellants demonstrate
    that it substantially affected their substantial rights. See Olano, 
    507 U.S. at 732
    . Because defendants all received life sentences on other
    counts which are to run concurrently, they cannot demonstrate that
    their substantial rights were affected. See United States v. Hastings,
    and the defense counsel’s response that, "I submit to you that there’s not
    a person in this courtroom including those sitting at [prosecutor’s] table
    who think Billy Young intended to defraud Apco." 
    470 U.S. at 4-5
    .
    UNITED STATES v. CELESTINE                       19
    
    134 F.3d 235
    , 240 (4th Cir. 1998). Accordingly, we reject appellants’
    Apprendi challenge to their convictions.
    Conclusion
    For the reasons stated above, and because none of the alleged
    errors, singly or in combination, deprived appellants of a fair trial, the
    convictions are
    AFFIRMED.
    

Document Info

Docket Number: 97-4219, 97-4220, 97-4221, 97-4238, 98-4222

Citation Numbers: 43 F. App'x 586

Judges: Goodwin, Joseph, Per Curiam, Traxler, Widener

Filed Date: 8/9/2002

Precedential Status: Non-Precedential

Modified Date: 8/6/2023

Authorities (30)

United States v. Houlihan , 92 F.3d 1271 ( 1996 )

united-states-v-peter-boylan-united-states-of-america-v-john-e-carey , 898 F.2d 230 ( 1990 )

United States v. Christopher Clarke , 2 F.3d 81 ( 1993 )

United States v. Phillip R. Balano , 618 F.2d 624 ( 1980 )

United States v. Joseph Henry Kotvas, Jr. Cullen H. ... , 941 F.2d 1141 ( 1991 )

United States v. Andres Aguiar , 975 F.2d 45 ( 1992 )

United States v. Joseph Brooks Robinson, United States of ... , 275 F.3d 371 ( 2002 )

United States v. Drayton Curry, A/K/A Mr. C. , 993 F.2d 43 ( 1993 )

United States v. John Leslie Leavis, Jr., A/K/A Johnny, A/K/... , 853 F.2d 215 ( 1988 )

United States v. Marion Promise, A/K/A Mario,defendant-... , 255 F.3d 150 ( 2001 )

United States v. Charles Wesley Helem , 186 F.3d 449 ( 1999 )

United States v. Frederick Keith Singleton , 107 F.3d 1091 ( 1997 )

United States v. Michael Moore , 710 F.2d 157 ( 1983 )

united-states-v-norman-harrington-wilson-aka-stormin-norman-united , 135 F.3d 291 ( 1998 )

United States v. Joseph Motley Whitehead, United States of ... , 618 F.2d 523 ( 1980 )

United States v. Luis Mario Herrera , 23 F.3d 74 ( 1994 )

United States v. Corey Allen Wilson, A/K/A Jugs , 198 F.3d 467 ( 1999 )

united-states-v-ronald-allyn-fiel-united-states-of-america-v-todd-d , 35 F.3d 997 ( 1994 )

united-states-v-ervis-lamont-hastings-united-states-of-america-v , 134 F.3d 235 ( 1998 )

United States v. Clinton Bernard Frazier-El , 204 F.3d 553 ( 2000 )

View All Authorities »